Thornberry v. Delta Air Lines, Inc.

• Decision Date: 04 June 1982
• Docket Number: 81-4197,Nos. 81-4182,s. 81-4182
• Citation: 676 F.2d 1240
• Parties: 30 Fair Empl.Prac.Cas. 1674, 29 Empl. Prac. Dec. P 32,747 Margaret THORNBERRY, Patricia Farmer, Delores O'Sullivan, and Linda Magel, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees/Cross-Appellants, v. DELTA AIR LINES, INC., a corporation, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1240

676 F.2d 1240

30 Fair Empl.Prac.Cas. 1674,

29 Empl. Prac. Dec. P 32,747

Margaret THORNBERRY, Patricia Farmer, Delores O'Sullivan and Linda Magel, on behalf of themselves and all others similarly situated Plaintiffs-Appellees/Cross-Appellants, v. DELTA AIR LINES, INC., a corporation Defendant-Appellant/Cross-Appellee.

Nos. 81-4182, 81-4197.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 10, 1982.

Decided May 5, 1982.

As Corrected May 13, 1982.

As Modified June 4, 1982.

Elizabeth G. Leavy, San Francisco, Cal., argued, for Thornberry; Gerald E. Magaro, Carroll, Burdick & McDonough, San Francisco, Cal., on brief.

Gilmore F. Diekmann, Jr., Bronson, Bronson & McKinnon, San Francisco, Cal., for Delta Air Lines.

Appeal from the United States District Court for the Northern District of California.

Before FARRIS, FERGUSON and NELSON, Circuit Judges.

FERGUSON, Circuit Judge:

Several appeals and cross-appeals are involved in this case. All of the appeals and cross-appeals, however, are directed to the appropriateness of the amount of attorneys' fees awarded to attorneys representing a class of female employees in a Title VII suit against Delta Air Lines.

The suit resulted in a settlement with Delta which provided for a claims procedure to provide Delta employees with open-ended relief from sex discrimination, a complaint process within Delta's employment structure to deal with any sex discrimination complaints which might arise in the future, changes in job description and promotional opportunities for women, and an explicit monetary settlement for the four named plaintiffs. The agreement also provided for payment to attorneys for the handling of claims pursuant to the claims procedure. With respect to the issue of plaintiffs' attorneys' fees and costs during litigation, the agreement provides as follows:

After final approval of this agreement, the parties shall negotiate concerning the amount of the costs, including attorneys' fees, to be awarded, subject to court approval. Should the parties fail to agree on this issue within thirty-five (35) days of final approval of the Settlement Agreement, and no appeal having been taken from the approval order, plaintiffs may file a motion according to the court's regular calendar procedures seeking an award of costs, including reasonable attorneys' fees.

After the parties failed to reach agreement concerning the amount of plaintiffs' attorneys' fees and costs within the stipulated 35-day period, plaintiffs applied to the court for an appropriate award. The total amount of fees sought by plaintiffs was $409,846.88. In addition, plaintiffs sought reimbursement for costs incurred by them in the litigation in the amount of $90,571.92. The court entered judgment on December 5, 1980 in favor of plaintiffs in the amount of $224,334.88 for attorneys' fees and $83,918.51 for costs incurred in the prosecution of the action.

Delta filed this appeal from that judgment. Plaintiffs cross-appealed from the portion of the court's subsequent orders of December 5, 1980 denying $6,653.41 in travel expenses, and March 31, 1981 granting them only $2,700.00 in additional fees.

The trial court has broad discretion to determine reasonable attorneys' fees and costs. Such a decision is not to be disturbed except for abuse of discretion. Under this narrow standard of review, we reject both the appeal and the cross-appeal, and affirm the judgment and subsequent orders of the district court.

The only real issue in this case is whether the district court abused its discretion in awarding the stated amount to the plaintiffs.

Title VII confers statutory authority on the court to award attorneys' fees. Section 706(k), 42 U.S.C. § 2000e-5(k). The trial court's broad discretion to determine reasonable attorneys' fees has been well recognized by the circuits. Sangster v. United Air Lines, Inc., 633 F.2d 864 (9th Cir. 1980); In re Gypsum Antitrust Cases, 565 F.2d 1123 (9th Cir. 1977); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972). In Schaeffer v. San Diego Yellow Cabs, the Ninth Circuit emphasized that the allowance of reasonable fees in Title VII cases is an important feature of the enforcement provisions of the act. The Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), stated that the amount of the award should not be so low that the award would discourage others seeking to attack discriminatory practices. The trial court must consider the congressional objective of giving victims of discrimination access to the courts when determining an appropriate fee award.

Due to the trial judge's familiarity with the litigation, review of the trial court's exercise of discretion in awarding attorneys' fees is narrow. The District of Columbia Court of Appeals, en banc, stated:

It is common learning that an attorney's fee award by the District Court will be upset on appeal only if it represents an abuse of discretion. We customarily defer to the District Court's judgment because an appellate court is not well situated to assess the course of litigation and the quality of counsel. The District Court judge, by contrast, closely monitors the litigation on a day-to-day basis. The Supreme Court long ago observed that a trial judge "has far better means of knowing what is just and reasonable than an appellate court can have." Trustees v. Greenough, 105 U.S. 527, 537, 26 L.Ed. 1157 (1882). Accordingly, we think "it is better to have th(e) discretion (to award fees) exercised by the court which has been most intimately connected with the case."

Copeland v. Marshall, 641 F.2d 880, 901 (D.C.Cir.1979). Likewise, the Ninth Circuit has held:

In reviewing the court's exercise of its discretion, we are not to "substitute our ideas of fairness for those of the district judge in the absence of evidence that he acted arbitrarily." Patterson v. Newspaper & Mail Deliverers' Union, 514 F.2d 767, 771 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976), and such evidence must constitute a "clear showing" of abuse of discretion, Flinn v. FMC Corp., 528 F.2d 1169, 1172 (4th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976).

In re Gypsum Antitrust Cases, supra, 565 F.2d at 1128.

In the instant case, Judge Peckham closely monitored the litigation over a period of approximately five years, and carefully considered the evidence on attorneys' fees.

In determining the amount of fees to be awarded in Title VII litigation, courts have adopted two overlapping frameworks of analysis: the lodestar approach, Lindy Bros. Bldrs., Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973), and the Johnson approach, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Both the Johnson and the lodestar approach are consistent with the legislative intent of the statutory fee provision of Title VII.

In the instant case, the district court combined the two approaches. First, Judge Peckham weighed a number of the factors listed in Johnson, such as the customary fee charged by plaintiffs' attorneys for similar work, the range of fees for similar work performed by attorneys in the geographical area, and the special expertise of plaintiffs' counsel in employment discrimination cases. In so doing, Judge Peckham determined the legitimate hourly rate.

Having determined the base rate, the court then determined the reasonableness of attorney time spent on the case. The court then multiplied the hours claimed by the hourly rates that it had determined to be reasonable for each attorney to arrive at the lodestar figure.

After arriving at the lodestar figure, the court concluded that the results obtained by the plaintiffs' attorneys were significant and therefore there was no need to accept Delta's suggestion that the lodestar figure be adjusted downward by 10% because the attorneys' gains were negligible.

Moreover, the court did not err by refusing to limit the percentage amount of the pecuniary award. In Harkless v. Sweeny Independent School District, 608 F.2d 594 (5th Cir. 1979), the court stated:

(T)he statute provides that a "prevailing party" should receive attorney's fees when the trial court deems it appropriate, and does not limit those fees to the amount recovered by the plaintiff. The purpose of the Attorney's Fees Award Act-to encourage private enforcement of the civil rights laws-would be thwarted by a limitation such as that proposed by the appellants, and no such restriction is suggested by the legislative history of the Act.

Id. at 598. The Ninth Circuit has agreed with this reasoning. Manhart v. City of Los Angeles, 652 F.2d 904 (9th Cir. 1981) (substantial attorney fee award upheld by Ninth Circuit despite absence of any back pay whatsoever).

Not only is the amount of back pay not determinative in an attorney's fee award, it is also irrelevant that plaintiffs did not obtain every form of relief sought. In Manhart v. City of Los Angeles, the Ninth Circuit held that a Title VII fee award cannot be deemed excessive because it included fees for time spent in preparing claims which were dismissed by the district court. The court stated:

(P)laintiffs pursued several claims to remedy the same injury, gender discrimination. Under those circumstances, plaintiffs are entitled to an award for all time spent in pursuit of their ultimate goal. Copeland v. Marshall, 641 F.2d at 892 n.18; Lamphere v. Brown University, 610 F.2d 46, 47 (1st Cir. 1979); see Seattle School District v. Washington, 633 F.2d 1338, 1349 (9th Cir. 1980).

652 F.2d at 909.

In Northcross v. Board of Education, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980), the trial court's reduction of fees, because plaintiff had not prevailed in some issues, was reversed on appeal:

This approach is not proper under...